Audiovisual works and problems with copyright law

Introduction
Additional remuneration for co-authors and performers
Liability for remuneration
Collective management organisations
Scope of use covered by additional remuneration obligation
Definition of audiovisual work
Comment


Introduction

Due to the specific nature of audiovisual works compared with other categories of copyrightable works, the legislature has provided a separate chapter in the Copyright Law to regulate in more detail the related issues. Audiovisual works are generally created through the participation of a large group of people (co-authors), which can lead to problems concerning rights to these works. The legislature has adopted a contractual assignment system based on:

• the fact that an audiovisual work is created through cooperation between creators and producers; and
• the assumption that the producer of an audiovisual work acquires exclusive rights to use such work pursuant to an agreement to create an audiovisual work or use an existing work.

At the same time, co-authors are granted specific rights. However, the regulation is not faultless and can cause numerous practical problems as seen in the doctrine and case law of the Polish courts.

Additional remuneration for co-authors and performers

The Copyright Law provides that co-authors and performers of audiovisual works have the right to additional remuneration for the use of such work. This remuneration is independent of that to which the co-authors are entitled for the creation of the work and the transfer of economic rights thereto. The aim of this regulation is to prevent the uneven distribution of profits from the exploitation of an audiovisual work. The Copyright Law lists the following types of remuneration:

1) remuneration proportionate to the receipts from cinema screening of an audiovisual work;

2) appropriate remuneration for rental of copies of an audiovisual work and their communication to the public;

3) appropriate remuneration for broadcasting the work in the television or via other means of public communication of works;

4) appropriate remuneration for reproducing an audiovisual work for individual use.

Liability for remuneration

Parties that wish to use audiovisual works often face a number of practical issues. First, according to Article 70.3 of the Copyright Law, the users of an audiovisual work must pay remuneration to its co-authors via the competent collective management organisation. The notion of who is a 'user' is undefined and ambiguous, but according to case law it should be understood as the direct user of an audiovisual work within the fields of use specified in Article 70.2¹ of the Copyright Law and not, for example, the party that licenses the use of an audiovisual work in these fields of exploitation.

This means that any party which enters into an agreement with a producer in order to use an audiovisual work must pay both the fee agreed with the producer and the additional remuneration due to co-authors and performers. All interested parties should keep in mind the abovementioned obligation when concluding contract terms. Where there is an extensive distribution chain for a particular audiovisual work, it can be difficult to identify which parties must pay and, accordingly, which relevant collective management organisations could have problems with the management of the corresponding amounts to be paid to the relevant co-authors.

Collective management organisations

Another issue is that there are several authorised collective management organisations under Article 70.2¹ of the Copyright Law. Given the duality of the exploitation of audiovisual works (ie, a fee is paid to the producer and remuneration to the co-authors and performers), users of audiovisual works must pay remuneration for the use of those works several times. At the same time, co-authors and performers need not be members of a particular collective management organisation. As a result, finding persons entitled to additional remuneration and identifying the pertinent collective management organisation can be problematic.

Scope of use covered by additional remuneration obligation

The Copyright Law provides that the co-authors and performers of an audiovisual work are entitled to appropriate remuneration for broadcasting the work on television or via other means of public communication. However, the meaning of 'broadcasting work via other means of public communication' is vague and does not appear in the act's remaining provisions. Some commentators believe that broadcasting audiovisual works on the Internet or making such works available on demand does not fall within this definition. Moreover, there have been disputes over whether the notion of 'broadcasting the work' includes its retransmission of work through cable networks (eg, pay-per-view channels). Needless to say, such retransmissions are one of the most profitable fields of use for audiovisual works. Recent Supreme Court decisions favour a literal interpretation of Article 70.2¹ of the Copyright Law, which does not explicitly indicate such use of an audiovisual work.

Definition of audiovisual work

The Copyright Law provides no legal definition of an 'audiovisual work'. It is therefore unclear how the rules regarding additional remuneration should be applied to audiovisual ads. Case law has tried to fill this gap by defining what constitutes an 'audiovisual work'. For example, Constitutional Tribunal Decision K5/05 stated that the common feature of audiovisual works is that they are the expression of a creative activity of an individual nature, expressed in a series of consecutive images, with or without sound, fixed on any medium that allows multiple performances and gives the impression of movement.

However, a number of issues remain unresolved. The Supreme Court recently adopted Resolution III CZP 105/17 to address the legal question of whether the author of a short animated audiovisual work could claim additional remuneration from a collective management organisation if said organisation did not generally provide for the payment of remuneration for that type of audiovisual work.

The author had created the graphic design of a television programme which consisted of graphic elements with illustrative music and several short animated films. The producer subsequently broadcasted the work and provided the relevant collective management organisation with reports concerning its use together with remuneration. However, the collective management organisation did not pay the remuneration to the author because it did not cover remuneration for this type of work (ie, the collective management organisation decided that the work in question was beyond the scope of what constituted an 'audiovisual work'). The court found that the author could claim the payment of remuneration even if the collective management organisation provided no payment for this type of work, as the alternative would limit the scope of entitled entities to which collective management applies and the statutory rights of authors.

The above case shows that the lack of a statutory definition of an 'audiovisual work' can potentially result in collective management organisations retaining royalties that they have collected due to their own assessment of what constitutes an 'audiovisual work'.

Comment

The practical issues examined above when applying the rules concerning remuneration for the use of audiovisual works underline the need to amend the Copyright Law. The existing legislative gaps cannot be resolved by case law alone.

For further information on this topic please contact Szymon Gogulski or Jacek Zwara at Soltysinski Kawecki & Szlezak by telephone (+48 22 608 7000) or email (szymon.gogulski@skslegal.pl or jacek.zwara@skslegal.pl). The Soltysinski Kawecki & Szlezak website can be accessed at www.skslegal.pl.